proaches already exist.38 This tool focuses on investigative and prosecutorial capacity, which
should include the following:39
• Lawyers who are skilled in the particularities of guiding system crimes investigations;
• Expert analysts in various fields, including historical, military and political analysts;
• Sufficient crime-scene investigators for the expected universe of cases;
• A liaison unit with NGOs and victim organizations to assist in victim preparation and
awareness; and
• Experts to deal with the particular needs of women and children.
It is important to realize that a well-designed structure, guided by the correct analytical focus,
may be capable of significant results even with small numbers of staff. Building constructive
partnerships, such as harnessing effective victim and civil society cooperation, may reduce time
and cost. While many NGOs will want to play an active part in prosecutions through evidence
gathering and investigative work, they can also contribute to the strategic development of domestic prosecutions in ways that official prosecutorial bodies cannot. Because of their proximity
to victims, NGOs can and should develop programmes that allow victims to participate meaningfully in the prosecution process.40
D. Respecting victims’ needs and rights
1. Involving victims in the process
One of the International Criminal Court’s relatively novel features is its emphasis on the participation of victims in the trial. From a common-law perspective, this approach may seem odd
or even inappropriate, but it reflects something close to the norm for civil-law jurisdictions.41
38
n example is Peru, where a “subsystem” has been created to deal with terrorism cases from the conflict period and proposA
als are being discussed to allow this to be extended to deal with other crimes from the past. Complex proposals are under
consideration for the creation of a tribunal for justice and truth in Colombia as part of a process to help disarm organized
groups. Many common-law jurisdictions established war crimes investigations units in the late 1980s as a result of specific
cases that emerged at the time. Several people moved from these units to have a significant influence in the development of
the Office of the Prosecutor in ICTY.
39
If the legal system employs a more old-fashioned inquisitorial model with an active investigating role for the juge d’instruction,
additional training would also be necessary at that level.
40
ey examples of how NGOs may relate to victims can be seen in the excellent examples of the Centro para la Acción Legal
K
en Derechos Humanos (CALDH) in Guatemala in its work with 24 indigenous communities seeking prosecutions for war
crimes and crimes against humanity, or with Paz y Esperanza in Ayacucho, Peru. While many other NGOs stand out for effective work, what distinguishes these organizations is the care taken in working with the victims and trying to ensure that
the process restores their dignity.
41
ne of the most progressive examples can be seen in the Guatemalan criminal procedure (at least in theory). There, victims
O
and human rights organizations that can demonstrate a right to be involved in a case may act as associated plaintiffs (querellante adhesivo). They have the right to present lines of inquiry throughout the investigation to the prosecutor. A controlling
judge, whose function is limited to ensuring the legality of the investigation and confirming the indictment, can hear complaints on the failure of the prosecutor to act on the suggestions of the querellante. At trial the victim can examine in chief
and cross, present evidence, propose witnesses and appeal.
17
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